07 June 2004

The Evil of Wanting to Get Paid for Your Work

Delegate Hamilton starts this editorial by outlining some of the changes in indigent defense which the Legislature has undertaken. He then goes into attack mode because lawyers who are losing a substantial portion of their business to newly founded public defenders offices admit that they depended on the money they earned from doing court appointed work.
According to a May 20 article in the Daily Press, the last initiative seems to have met with displeasure by some lawyers in the local legal community. Surprise, surprise! Private lawyers complaining because the creation of these public defenders offices might cause their taxpayer-funded government subsidy to be reduced.

In 2003, a local lawyer referred to court-appointed work for indigent defendants as a "meal ticket." In the most recent Daily Press article, another local lawyer made the following comment: "For a lot of guys in the city, it's their primary bread and butter." Another lawyer "expects to have to reorient his practice to make up for the loss of court-appointed cases."

Never once did these lawyers mention the rights of indigent defendants as their focus or priority. This too should come as no surprise, as the Spangenberg report quoted one local lawyer as being candid and "admitting that with a retained client, he spends substantially more time looking for an issue that will benefit the client, while in a court-appointed case he spends as little time as possible looking for an issue that will dispose of the case. He added, 'If we want to make a living we have to get rid of the case as quickly as possible.'"
. . .
[R]eferences to court-appointed work as one's "meal ticket" or "primary bread and butter" underscore a serious issue in addressing the constitutional rights of indigent defendants. Thankfully, there are many private and public attorneys in our society who are willing to provide these important legal services without focusing on the public subsidy they receive to maintain a private legal practice.
First of all, payment for WORK done in the defense of those indigent accused of a crime is not a “taxpayer-funded government subsidy.” It is WORK and should be paid for.

Second, does anybody actually believe that the reason the Legislature is putting these offices in place is because the members are concerned about the representation of the indigent? These offices are going in place for the very reason that the Delegate alludes to when he complains that 75% of money paid for indigent defense went to private attorneys who only did 25% of the work. The Legislature wants to save money and it could care less about the representation. If the members seriously believed that socializing criminal defense is the best thing that can be done for indigent Defendants it would mandate public defenders throughout the Commonwealth. - BTW: It seems to me that the 75/25 numbers, &cetera are iffy; they are probably very heavily skewed by capital murder trials and particularly by the Muhammad/Malvo circuses.

Third: Yes, my primary source of income is from defending the indigent; it is therefore my “bread & butter.” However, anyone who thinks I’m getting rich doing this should go out and look at my 15 year old clunker which I hope will last for quite a while longer. I would be very concerned if, after I have spent years developing my practice, someone came along and yanked away that which I had relied upon to pay my bills. I’m sorry Delegate Hamilton, but I am not a saint. I do not live in a cave, wash up out of the rain barrel, and put on my one threadbare suit so that I can walk to the courthouse and represent people for free. Nor does the fact that I represent the indigent keep my creditors from wanting to get paid. I live in the real world and have to consider things which happen in the real world.

All that said, I try to represent every one of my clients as best I can. The fact that I have to worry about paying my rent does not mean I am less upset when someone I believe is innocent is found guilty. It does not stop me from researching issues and arguing them in court. It does not stop me from putting on the jury trial when it is my client’s best interest or if he demands one. What’s the quickest way to stop me from striving for my clients? Shut me down by not paying me or take my work away by socializing it.

Fourth: Why is a Republican advocating either (a) socialization of a private business sector, or (b) professional businessmen working without getting paid adequately?

Fifth: This whole editorial strikes me as a defiant scream of a cornered Legislature which knows it is in the wrong. It has refused session after session to raise fees to anything comparable to what they are in other States. Something has got to break soon. Personally, I don’t think the Legislature is capable of raising the fee caps to reasonable amounts on serious felonies because of election concerns (“Delegate Smith was more interested in the defense of criminals than citizens. Vote Jones.”). On the other hand fee caps which stop payment on a non-capital murder trial (jury) at $1,096 are so clearly wrong that they create serious problems. If I had a crystal ball, I’d say that eventually the federal courts will require Virginia to fix itself.

Sixth: Assuming (1) the 75/25 numbers are correct, (2) that public defenders offices really are a good thing, & (3) the fee caps are dangerously low enough to make federal intervention a distinct possibility: The Legislature could get really creative, mandate public defender offices throughout the Commonwealth, and then double all fee caps for court appointed attorneys (maybe even triple them). It’s a workable solution. Of course, the only problem is the massive funding hit at the beginning when the offices are set up. After that it should even out or maybe come to a lesser amount. You could even alleviate some of the setup burden by requiring localities to match, penny for penny, all the money and benefits they give to prosecutors (including free office space) with money for PD offices.

Addendum: As I read back through this I realize that some might take it as inferring that I think PD offices are inferior. That's not true. I have seen some amazing attorneys who are PD's; they are usually buried under a staggering workload but they are very good. I've also seen some very bad private lawyers. I'm just not convinced that if the Commonwealth were to adequately fund private attorneys and provide them with experts etc. when necessary that there is much difference. My concern is that PD offices will be set up and be perpetually understaffed, underpaid, overworked, and the darling of a Legislature obsessed with the bottom line rather than an adequate defense. After all they are guilty or the officer wouldn't have charged them - right?

Addendum 2: Forgot to give credit where due: Lv SW VA Law.


Litigator said...

I looked up Mr Hamilton's resume on his website, it's amazing how someone with little to no experience in this area could suddenly become an expert.
On another note, I'm sure you're aware that if the Bush administration is reelected, we will see a lot of lawyers out of business.

Anonymous said...

>>>On another note, I'm sure you're aware that if the Bush administration is reelected, we will see a lot of lawyers out of business.

What does this mean? The good thing about being a lawyer (from my perspective) is that we are immune to politics. There will always be a role for lawyers, whether we are representing the lower classes who come into contact with the police, or advising a majestic corporation of ways to maximize profit given the state of "the law."

Most of what Bush says is written by lawyers. In fact, most of the thoughts that most non-lawyers have, at some point was initially formulated by a lawyer.

Anyway, I happen to think that a large, competent, and (of course) independent public defender's office is a good thing. Now, Mr. Lammers might be the exception, but I think that it is fundamentally unfair to force the poor to be represented by someone without the clerical, investigative, and related to support that a prosecutor's office has.

Also, I should note that having a large group of dedicated (as in: this is all the do and they need not care about anything else) public defenders has some good long-term systemic effects on the justice system. Career public defenders serve on various committees, and they need not worry about losing money because they are paid on salary. Their input into rules committees is seen in every state with such agencies. Career public defenders make their way into the judiciary. Career public defenders can credibility testify to a legislature about what the general needs are of such an agency.

Now, of course, there will be a need for appointed counsel as the PDs office is often "conflicted out."

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